Pro se claimant Vincent DeVivo alleges that because of defendant's
negligence, items of his personal property were found damaged or missing at
Sullivan Correctional Facility. The claim was tried on June 20, 2000 at the
facility. DeVivo testified on his own behalf and defendant called correction
officer Robert Wexler.

Claimant testified that on October 2, 1997, a correction officer came to his
cell block and asked each inmate what his plans were for the afternoon. DeVivo
explained that after making such inquiries, the officer then informed another
officer in the "bubble" – who has control over the locks to the cells
– of each inmate's plans so that the bubble officer could then open or
lock the cells as appropriate. DeVivo informed the inquiring officer that he
planned to go to the recreation yard, where he did in fact go until about 3:45
p.m. He recalled that at that time, all cells were opened for five minutes and
he returned to his cell.

Upon entering, he smelled feces and then noted that his cell had been
"wrecked." He called for a correction officer and Sergeant Wexler arrived and
had photos of the cell taken, after which DeVivo cleaned the cell. When he was
finished, he still noticed an odor and when he opened his unlocked locker, he
found feces on items inside. DeVivo testified that in addition, items were
missing from the locker, including special low vision aides. DeVivo, who is
legally blind, testified that he had paid $571 for the vision aides. DeVivo
stated that clothing, cigarettes and his electric razor were also missing. He
added that 25 cassette tapes had been submerged in the toilet and no longer
worked and his hot pot was smashed on the floor.

Subsequent to the trial, both defendant and claimant wrote to the Court
concerning claimant's vision condition and the availability of low vision aides
to claimant. This decision is made on the assumption that claimant is entitled
to low vision aides if found medically appropriate, regardless of any findings
made herein.

Asked whether he had had any altercations with other inmates in the weeks
before the incident, claimant said no, but added that the night before, he had
asked Officer Wexler to turn on the baseball game, which another inmate --
"Dollar" -- did not want to watch. Dollar pulled the plug on the television and
Officer Wexler warned him that he would be in trouble if he did it again.
Despite this incident, DeVivo said he did not believe that Dollar was the
culprit. He added that to his knowledge, no one was ever disciplined or even
identified in connection with the event.

Officer Robert Wexler confirmed that with regard to the opening and locking of
cells, an officer makes rounds to ask each inmate what his plans are. The cells
of those inmates who leave are deadlocked and will not open until the 3:45
"go-back." He explained that if other cells are opened – apparently for
inmates who leave after the initial release following lunch – the
deadlocked cells do not open. According to Wexler, the 3:45 p.m. go-back lasts
for ten to fifteen minutes, during which time all cells on the block are opened.
He added that some inmates immediately go back to their cells, while others talk
for a while before returning, but it takes 10 to 15 minutes for all the inmates
to return to their cells. Wexler also stated that a bell rings immediately
before the opening and closing of the cells. He testified that there are 62
cells on the block and two officers watch the block during go-back. The inmates
are not allowed in each other's cells, which is a serious offense leading to
keeplock status. Claimant interjected that the two officers also watch another
cell block that contains 62 cells.

Wexler testified that on the day in question, he was called over to DeVivo's
cell at 4:15 p.m., upon which he saw broken items and wet tapes. He said that
he took photographs of the cell and wrote a "to-from" memorandum to his
supervisor regarding the incident. He recalled that he also made a report
regarding the problem with Dollar the night before and he recommended that
DeVivo be moved to a different cell. He added that he gave DeVivo new bedding
and cleaning materials.

* * * * *

DeVivo's theory on the damage to his cell and property was that it could not
have occurred during the go-back period -- which he recalled was five minutes
long -- but rather would have taken longer – he estimated a full 10 to 15
minutes – and must have been done at a 3:00 break when inmates came back
to their cells; he surmised that his cell must have been opened in error at that
time, allowing another inmate entry. Wexler, on the other hand, testified that
the go-back period lasted 10-15 minutes, long enough for the damage to have
occurred at that time. As set forth above, no eyewitnesses to the damage
testified at trial. Beyond theorizing, DeVivo presented no evidence that his
cell was mistakenly opened during a break. Nor did he present evidence that
any rules or regulations in terms of officer supervision were violated. In
short, he failed to prove by a preponderance of the evidence that his cell and
property were damaged because of defendant's negligence.

Accordingly, IT IS ORDERED that the claim of Vincent DeVivo be dismissed.

LET JUDGMENT BE ENTERED ACCORDINGLY.

September 26, 2000New
York, New YorkHON. ALAN C. MARINJudge of the Court of Claims